March 23, 2011

Time Warner Ordered to Hand Over IDs in Illegal Downloading Suit

A Washington federal judge has ordered Time Warner to identify several hundred subscribers accused of illegally downloading movies, over the cable giant’s protests that the request is unfairly expensive and time-consuming.

U.S. District Court Judge Beryl Howell, in an opinion (PDF) issued yesterday, struck down Time Warner’s motion to quash the subpoenas for subscriber information in two of the three cases pending before the court, meaning Time Warner will have to come up with the identities of about 250 subscribers.

But Howell granted Time Warner’s motion in one of the suits because one of the movie companies, Maverick Entertainment Group of Deerfield Beach, Fla., failed to serve the subpoena in person; Howell wrote that while the company claims it faxed and e-mailed the subpoena, it failed the serve the subpoena in person as the law requires. That suit involves the largest group of defendants, so the error could cost the plaintiffs the identities of more than 700 Time Warner subscribers; the movie company has 10 days to re-issue the subpoena.

Time Warner is caught in the middle of ongoing litigation between three movie production companies - Maverick, Donkeyball Movie of Charlottesville, Va.,and Call of the Wild Movie in Eugene, Ore. - and thousands of anonymous Internet users. The three companies, which filed separate complaints that are similar except for the copyrighted material in question, allege the users violated copyright laws by sharing copies of their movies for free through a file-sharing site known as BitTorrent.

The companies collected thousands of Internet Protocol addresses for users they believe broke the law, but IP addresses don’t offer any information on a user’s name, address or other information. Time Warner was served with subpoenas to identify about 1,000 of its subscribers who are among the more than 5,500 anonymous users identified as defendants.

Time Warner, represented by Alexander Maltas of Washington’s Latham & Watkins, argued that the subpoenas were too burdensome. The corporation is already stretched complying with other requests, according to its motion, and the limited staff it has dedicated to digging up information behind IP addresses would not be able to comply with the request within a reasonable time frame.

Maltas declined to comment when reached by phone Wednesday. A Time Warner representative could not immediately be reached for comment.

Howell wrote that Time Warner had failed to prove its point, noting that other cable companies have been able to comply with similar requests and also that the plaintiffs have offered to pay for Time Warner to hire an additional employee to help.

She also disagreed with amicus briefs filed by several free speech groups, including the American Civil Liberties Union and Electronic Frontier Foundation. Those groups argued that the anonymity of Internet users are protected by the First Amendment, even in certain cases involving copyright infringement.

“File-sharers are engaged in expressive activity, on some level, when they share files on BitTorrent, and their First Amendment rights must be considered,” Howell wrote. However, she wrote later on in the opinion, the "asserted First Amendment right to anonymity in this context does not shield them from allegations of copyright infringement."

Nicholas Kurtz of Washington’s Dunlap, Grubb & Weaver is representing the three movie companies in their respective suits. He could not immediately be reached for comment.